Appealability of refusal to exercise revisional power rejected, as no appeal lies against a mere decision not to act.

An appeal under section 36 of the Tamil Nadu General Sales Tax Act, 1959 lies only against an order actually passed by the Deputy Commissioner in exercise of suo motu revisional power under section 32. A mere refusal to initiate or exercise that revisional power is not a positive order under section 32(1) and therefore is not appealable to the Sales Tax Appellate Tribunal. Applying the principle that appellate or revisional remedies arise only when the statutory power is exercised, the High Court held that the Tribunal had wrongly assumed jurisdiction. The revision was allowed, the Tribunal's order was set aside, and the appeal before the Tribunal was held not maintainable.

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Issues: Whether an order declining to exercise suo motu revisional power under section 32 of the Tamil Nadu General Sales Tax Act, 1959, is appealable to the Sales Tax Appellate Tribunal under section 36 of the Act.

Analysis: Section 36(1) permits an appeal only against an order passed by the Deputy Commissioner under section 32(1). The refusal to initiate suo motu revision does not amount to a positive order under section 32(1). The earlier decisions construing analogous provisions under the Act established that appellate or revisional remedies arise only when the authority actually exercises the power and passes an order, and not when it declines to act. Applying that principle, a mere refusal to exercise suo motu power cannot be treated as an appealable order.

Conclusion: No appeal lay to the Tribunal against the Deputy Commissioner's refusal to exercise suo motu power, and the Tribunal's assumption of jurisdiction was incorrect.

Final Conclusion: The revision succeeded, the Tribunal's order was set aside, and the assessee's appeal before the Tribunal was held to be not maintainable.

Ratio Decidendi: An appeal under a provision limited to orders passed in exercise of revisional power does not lie against a mere refusal to exercise that power.

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